IRIS Plus 2011-4: Who Pays for Private Copying?

Author: Francisco Javier Cabrera Blázquez, European Audiovisual Observatory

Published: 01/06/2011

Triangular relationships are not only a challenge in human life but also in legal settings. In the case of private copying levies, the three points of the triangle are the creators of works, legally acting copyists and copyright pirates. Their interaction is to some extent, and possibly not suffi ciently, guided by law.

Given that we all wish to have a large variety of content, we mostly agree that creative forces need protection in order to stay creative and obtain income in order to fi nance their creativity. Hence, in the interest of the general public, legislators around the globe have made creativity fi nancially attractive by conferring legal rights upon authors and other creative forces. These rightsholders can “sell” the use of their rights to make a living. But we do not always need to buy in order to enjoy the copyright protected works. It is here that copyists enter the picture because many legislations allow certain uses of works even against the will of rightsholders. This naturally complicates the relationship between rightsholders and users, who would otherwise be customers (or pirates). At the same time countries that allow for copyright exceptions – such as private use – appease rightsholders by systems of fair compensation. This delicate balance is tilted by pirates who use copyright protected works without being covered by any copyright exception. For rightsholders this lost income is not covered by any fair compensation scheme. How much they lose is hard to tell, not least because illegal copying is often done in a way that blurs the distinction between pirates and legally acting copyists. To make the compensation fair and to block unlawful use not covered by the schemes is therefore not an easy task.

Key factors in the equation are what uses to allow, how to measure fair compensation, whom to ask for payment, and how to prevent the disrespect of the system thus developed. We can currently witness a very intense debate about all these points linked to the issue of private copying levies, a legal construct that may or may not be good guidance for the triangular relationship.

The lead article sheds light on the roots and current regulation of private copying levies. In particular it addresses the question of how to respond to the increase of private copying triggered by the digital means of reproduction and distribution. Do we need a new rule for digital reception devices to compensate rightsholders? Looking at the same problem from a different angle, the lead article also investigates various ways of how to deal with fi le-sharing.

Can/should it be legalized at the price of fair compensation? The related reporting articles pick up on the same two issues. They present recent developments concerning private copying levies and how different countries strike the balance between piracy and legal – compensated for – private use. Finally, this IRIS plus’s Zoom section gives an overview on where to fi nd provisions on reproduction rights, private copying exceptions and rules on fair compensation in the various EU countries. It should be noted that the URLs provided in this section lead to the consolidated texts in the (many) cases where laws have been revised and/or amended.